Amicus Curiae Brief — City of Sherrill v. Oneida Indian Nation of NY

No. 03-855 ee

In the Supreme Court of the United States

CITY OF SHERRILL, NEW YORK, PETITIONER

v~.

ONEIDA INDIAN NATION OF NEW YORK, ET AL.

ON WRIT OF CERTIORARI TO THE

JNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE

CITIZENS EQUAL RIGHTS FOUNDATION

AS AMICUS CURIAE

R. ALEX MORGAN ~ WOODRUFF LEE CARROLL

LANA E. MARCUSSEN Counsel of Record

CIRCA The Galleries

4518 N. 35% Place 441 South Salina St

Phoenix, AZ 85018 Syracuse, NY 13202

(602) 912-5640 (315) 474-5356

CURRY & TAYLOR @ WASH O.C. @ (202) 223-3160 ¢ USSCINFO.cCOM

i

TABLE OF CONTENTS

SEIT Ree aT ae Oe TT eee ii

INTEREST OF THE AMICUS CURIAE ...............cccssscccssscccccsssseeees

ii

TABLE OF AUTHORITIES

Cases

ALASKA V. NATIVE VILLAGE OF VENETIE

TRIBAL GOVERNMENT, 522 U.S. 520 (1998)............... 2,4

CASS COUNTY V. LEECH LAKE BAND OF

CHIPPEWA INDIANS, 524 U.S. 103 (1998)..............cc00e- 10

ERIE RAILROAD Co. V. TOMPKINS, 304 U.S. 817

( 2GBB) ...cccoccoccnsnsseseccenesssmmmmmnmme 2, 23,24

FLETCHER V. PECK, 10 U.S. (6 CRANCH) 87 (1810)

scccsssseeonsnessssenseseecntensesmtnmmmea 11, 12, 23

HOLLADAY V. KENNARD, 79 U.S. 390 (1871) ...........22.00 18

INYO COUNTY V. PAIUTE-SHOSHONE INDIANS OF

THE BISHOP COMMUNITY, 538 U.S. 701 (2008)........... 26

IN RE KANSAS INDIANS, 72 U.S. 737 (1866)..........0000000 18

JOHNSON V. M'INTOSH, 8 WHEAT. 543 (1823).............0000 17

MESCALERO APACHE TRIBE V. JONES, 411 U.S.

145, 348 (1973) ..cccccoccscessssesstenesemssssemm 13

NEW YORK INDIANS V. UNITED STATES, 170 U.S.

1, 21 (1BBB) ..cccocccssesestessttimmmmume 13,18

NEW YORK INDIANS V. UNITED STATES, 72 U.S.

(00) | Ee, 18

ONEIDA INDIAN NATION V. COUNTY OF ONEIDA,

414 U.S. 661, CFO (IDF) .nccccccccscocsscsccsssssssennnmmncamnnan 5,11

iii

PRIZE CASES, 67 U.S. 459 (1863) ......cccccccccccccccecceseesceseess 20

SANTA CLARA PUEBLO V. MARTINEZ, 436 U.S. 49

EE 22

SOSA V. ALVAREZ-MACHAIN, 124 S.CT. 2739

LL 2,7, 16,27

SOUTH CAROLINA V. CATAWBA INDIAN TRIBE,

INC., 476 U.S. 498, 505-06 (1986) ........ccccccccceccccecseeeeeees 14

SOUTH DAKOTA V. YANKTON SIOUX TRIBE, 522

Ee 5,6

SWIFT V. TYSON, 16 PET. 1 (1842)...........ccccccccccccsceccescesees 16

TALTON V. MAYES, 163 U.S. 376 (1896) .........cccccccccccceeeeee 19

UNITED STATES V. BOYLAN, 256 F. 468, 491 (N.D.N.Y.

1919), AFF'D, 265 F. 165 (2ND CIR. 1920)................: passim

UNITED STATES V. CURTISS-WRIGHT EXPORT

CO., 299 U.S. 304, 315-322 (1986)...........cccccccccccececeeceees 22

UNITED STATES V. JOHN, 437 U.S. 634, 638-47

cer eeeeernarnees .7,8

UNITED STATES V. KAGAMA, 118 U.S. 375 (1886)........... 18

UNITED STATES V. LARA, 124 S.CT. 1628 (2004) ............ 22

UNITED STATES V. SANDOVAL, 231 U.S. 28 (1913)........... i)

UNITED STATES V. WINANS, 198 U.S. 371 (1905)......10, 19

WINTERS V. UNITED STATES, 207 U.S. 564 (1908) ....10, 19

iv

WORCESTER V. GEORGIA, 31 U.S. 515 (1832).......... 00 12

Miscellaneous

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1

INTEREST OF AMICUS CURIAE

The Amicus Curiae, Citizens Equal Rights

Foundation (CERF) is a foundation established by

Citizen's Equal Rights Alliance (CERA), a South

Dakota non-profit corporation with members in 34

states, including the State of New York. CERF was

established to protect and support the constitutional

rights of all people, both Indian and non-Indian, to

provide education and _ training concerning

constitutional rights, and to participate in legal actions

that adversely impact the constitutional rights of

citizens. CERF questions whether there is any

constitutional authority to remove lands from state

jurisdiction unless the land is directly acquired by the

United States or a foreign state for government

purposes. CERF has a critical interest in this case

because CERA has members who own various assets

and pay property taxes on fee lands within the original

boundaries of various Indian reservations in the United

States. The residential property of one of CERA's

members is within the original Oneida reservation in

close proximity to land reacquired by the Oneida

Indians.

All parties have consented in writing to the filing

of this Amicus Brief. '

' Pursuant to Rule 37.6 of the Court, no counsel for a party has

authored this brief, in whole or in part. No person or entity, other

than amicus curiae, its members or its parent CERA's members,

or its counsel have made any monetary contribution to the

preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

This brief focuses on whether the Federal

District Court and Second Circuit Court of Appeals

properly designated lands purchased by the Oneida

Indian Nation as Indian country to negate property

taxes assessed by the City of Sherrill. The district court

and Second Circuit Court of Appeals concluded that the

"reservation" acknowledged in the Treaty of

Canandaigua and protected by the Nonintercourse Act,

25 U.S.C. § 177 was sufficient to allow these lands to be

designated as "Indian country" because the Oneida

Indian Tribe purchased the parcels. The City of Sherrill

properly raises Alaska v. Native Village of Venetie

Tribal Government, 522 U.S. 520 (1998) to refute

designating these lands Indian country. The Second

Circuit applied precedents from federal reservations of

public domain land to denominate these parcels Indian

country to remove them from state jurisdiction.

The history of federal Indian common law

includes federal war powers. The incorporation of the

war powers into federal Indian common law explains

the loss of constitutional rights when an area is

designated Indian country.

The Oneida Indian Nation and its individual

members raise 42 U.S.C. § 1983 and federal common

law to remove these lands from state jurisdiction. This

Court should restrict itself and the lower federal courts

from abusing federal Indian common law by applying

the doctrine of Erie Railroad Co. v. Tompkins, 304 US.

817 (1938) as was just done in Sosa v. Alvarez-Machain,

124 S.Ct. 2739 (2004), to this Indian federal common law

case. The federal courts improperly accepted removal

from the state court tax enforcement proceedings. The

3

lower federal court decisions should be vacated and the

case dismissed.

ARGUMENT

The land parcels purchased by the Oneida Indian

tribe are not Indian country and are subject to taxation

by the City of Sherrill. This brief explains how the

three distinct constitutional clauses, which are the basis

of federal Indian law were confused by the lower

federal courts in this case to incorrectly designate these

parcels of land Indian country. The Indian Commerce

Clause, Art. I, Sec. 8, Cl. 3, is the only clause properly

applied in New York today. The Treaty Clause, Art. II,

Sec. 2, Cl. 2, applies only to this case in interpreting the

effects of the 1794 Treaty of Canandaigua (7 Stat. 44)

and 1838 Treaty of Buffalo Creek (7 Stat. 550). The

Property Clause, Art. IV, Sec. 3, Cl. 2, which concerns

federal territorial lands owned by the United States

has never applied in New York, one of the original

thirteen colonies. The Oneida Indian Nation argued for

removal of this state property tax case to federal court

by claiming that their original reservation of state land

should be treated as being a federal Indian reservation

subject to the federal land laws pursuant to the

Property Clause.

The argument begins with the application of the

Village of Venetie analysis and its definition of Indian

Country to the facts of this case. This brief will then

place the tribal and federal positions into historical

context to address the problems of federal common law

eviscerating private property rights, civil rights and

state due process. It will conclude by examining the

standing of the Oneida Tribe and its individual

members to invoke through assertions of 42 U.S.C. §

z

1983 and federal common law the discretion of the

federal courts to hear this claim to remove these

parcels of land from the State of New York as Indian

country.

I. THE LOWER FEDERAL COURTS ERRED IN

FINDING THESE DISPUTED PARCELS OF ©

LAND ARE INDIAN COUNTRY

A. Under the reasoning of Alaska v. Native

Village of Venetie these disputed parcels of

land are not Indian country.

The term Indian country is defined in Alaska v.

Native Village of Venetie Tribal Government, 522 US.

520 (1998). The unanimous opinion merged the old

federal common law definitions with the. statutory

version of Indian country defined by Congress in 1948

as 18 U.S.C. § 1151. According to the opinion, the

federal courts are empowered to designate three types

of land to be Indian country (a) all land within the limits

of any Indian reservation under the jurisdiction of the

United States government, (b) all dependent Indian

communities within the borders of the United States

whether within the original or subsequently acquired

territory thereof, and whether within or without the

limits of a state, and (c) all Indian allotments. For an

area to be Indian country there must be (1) a federal set

aside of land for tribal use, and (2) federal

superintendence. /d. at 526-7.

Defining the land as Indian country operates to

remove primary state jurisdiction previously granted

when the federal public land-was opened for sale or

settlement. South Dakota v. Yankton Sioux Tribe, 522

5

U.S. 329, 343 (1998). It is uncontested that the land

parcels in dispute are not Indian allotments. The facts

of this case do not fit into either remaining category of

Indian country because the modern definitions are

federal public land terms. As discussed in Felix Cohen's

Handbook of Federal Indian Law, the term Indian

country was developing and was not defined until the

Indian Trade and Intercourse Act of 1834. F. Cohen,

Handbook of Federal Indian Law, 29-34, (1982 ed.). The

Second Circuit designated the disputed parcels of land

as Indian country without ever applying the facts to

this Court's definition of Indian country.

The land area in dispute was originally set aside

for the Oneida Indians as a reservation by the State of

New York in 1788 in the Treaty of Fort Schuyler. The

Treaty of Fort Schuyler contains a complete cession of

the Oneida's aboriginal land area in the State of New

York giving it fee title to all the ceded lands as an

original colony. Oneida Indian Nation v. County of

Oneida, 414 U.S. 661, 670 (1974). The State of New

York accepted the cession and set aside approximately

300,000 acres of its state land to make up the

reservation acknowledged in the 1794 Treaty of

Canandaigua. The land parcels currently assessed by

the City of Sherrill are located within these original

~ 300,000 acres of state land but not within the 32 acres

still reserved by New York for the Oneidas. None of

the original state reservation lands are or have ever

been held in trust status under 25 U.S.C. § 465 or any

other federal land designation. This state set aside land

was not ever territory of the United States according to

the federal district court or Second Circuit. See United

States v. Boylan, 256 F. 468, 491 (N.D.N.Y. 1919), aff'd,

265 F’. 165 (2nd Cir. 1920).

6

Article 2 of the Treaty of Canandaigua

recognized the 300,000 acres reserved to the Oneida by

the State of New York in 1788 "to be their property"

and stipulates that the said reservation shall remain

theirs, until they choose to sell the same to the people

of the United States, who have the right to purchase. (7

Stat. 44). This language, as the Boylan courts and this

Court has ruled, merely subjects the state reservation

lands to the restraint against alienation under the

Nonintercourse Act, 25 U.S.C. § 177. At most, the

Oneida Indians have the possessory right of occupancy

also known as Indian title. The United States has never

claimed in the Nonintercourse cases or in its Amicus

Brief filed in this case that the state lands, which were

reserved for the Oneida Indians and have always been

treated as state lands, were under federal jurisdiction

by operation of the Treaty of Canandaigua or the

Nonintercourse Acts.

According to the opinion of the Court in Venetie,

the Indian country statute, 18 U.S.C. §1151(a), requires

an Indian reservation to be under federal jurisdiction in

order to be designated Indian country. An Indian

reservation under federal jurisdiction is the modern

legal term developed for reservations of federal public

domain land for an Indian tribe preserved in federal

territorial status under the Property Clause, Art. IV,

Sec. 3, Cl. 2. Therefore, an historical Indian reservation

is assumed to have never come under state jurisdiction

unless expressly diminished or dissolved by Congress.

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329

(1998).

The term "reservation" as used in the Treaty of

Canandaigua has none of the meaning of the legal term

"Indian reservation" discussed in Yankton Sioux. The

term "reservation" was used as a general classification

7

through the Nineteenth and into the Twentieth

Centuries, not as a specific legal term. As Yankton

Sioux makes plain, it was understood that Congress at

the turn of the Twentieth Century failed to be

meticulous in its intent to modify reservation status.

Congress still assumed reservations were temporary

and did not precisely determine which lands were in or

out of the reservation in legislation. It was not until the

"reservations" were deemed to be perpetual in the

Indian Reorganization Act of 1934, 25 U.S.C. § 461 et

seq., that the federal lands term was required to

become legally precise to decide jurisdictional disputes

between sovereigns. Yankton at 343-4. See also F.

Cohen, Handbook of Federal Indian Law, 34-38 (1982

ed.), explaining the term "reservation" for purposes of

Indian country.

The Treaty of Canandaigua was entered into at

the end of the Eighteenth Century before any formal

Indian policy was developed by the United States. To

assume that the use of the word "reservation" in the

Treaty of Canandaigua engenders Congressional intent

to create a federal reservation and encompassed the

formal meaning and Congressional intent of the legal

term of the 1940's is inappropriate. See Sosa v. Alvarez-

Machain, 124 S.Ct. 2739 (2004). Yet, this is exactly the

basis of the Second Circuit calling the Oneida land

parcels Indian country as fully acknowledged in

Respondent's Brief In Opposition. Respondent's Brief

In Opposition (Br. in Opp.) at p. 10 citing the Second

Circuit Opinion A23-28.

The Second Circuit is completely and clearly

erroneous to cite United States v. John, 437 U.S. 634,

638-47 (1978) for the proposition that "by its nature" the

Oneida reservation in 1794 "was set aside by Congress

for Indian use under federal supervision." Opinion at

8

A25. As explained in United States v. John, the only

way that lands ceded to the state could have been made

into a federal Indian reservation post 1934 was for the

United States to actually purchase the land, placing it

under trust status to remove it from the jurisdiction of

the state as done for the Mississippi Choctaw. /d. at

645-6. The Treaty of Canandaigua does not include any

provisions for the United States to purchase the

property from the State of New York on behalf of the

Oneida tribe. Nor has Congress ever passed any

legislation to purchase lands for the Oneida Indians in

the State of New York.

The United States argues that the set aside

made by the State of New York when federally

acknowledged in the Treaty of Canandaigua vested an

ownership interest in the Oneida tribe implying the

land is a federal Indian reservation for purposes of

defining Indian country. The United States relies on

the court of appeals federal common law designation

"that the properties are within the historic reservation

land set aside for the tribe in the Treaty of

Canandaigua." Cynically, the United States says that

Congress has never changed the reservation status of

the land. See Amicus Brief of the United States at p. 18.

These parcels of land purchased by the Oneida

Indians within the original 300,000 acres set aside by

the State of New York are not an Indian reservation

under federal jurisdiction qualified to become Indian

Country under federal common law or 18 U.S.C. § 1151.

These parcels have never been federally set aside and

are not and never have been under any direct federal

superintendence. In fact, the district court opinion in

Boylan cites to the federally approved appointment of a

state superintendent to prevent the sale of the

remaining Oneida lands under section 3, chapter 185 of

9

the Laws of New York approved April 18, 1843. United

States v. Boylan, 256 F. 468, 476-7 (N.D.N.Y. 1919). As

the Boylan courts made clear, the federal restriction on

alienation did nothing to change the fee title of the

lands held by the State of New York. United States v.

Boylan, 265 F. 165, 173 (2nd Cir. 1920). The 300,000

acres of land set aside by the State of New York has

always been under primary state jurisdiction.

Both the Oneida and the United States only

claim to federal superintendence over these disputed

parcels of land is that they have been restricted from

alienation under the Nonintercourse Act. Lands being

restricted from alienation was one factor for this Court

to find the lands of the Santa Clara Pueblo to be Indian

country in United States v. Sandoval, 231 U.S. 28

(1912). However, the opinion in Sandoval makes quite

clear that federal superintendence over the private fee

lands of the Pueblo only attaches because additional

contiguous federal. public lands have been reserved to

the Pueblo as their reservation to give the United

States superintendence over all of their property. Jd. at

39.

The Court in Sandoval intermixed the federal

land definitions of "reservation" and "dependent Indian

community" to designate the Pueblos "Indian country."

Id. at 39. Unlike the Pueblo Indians, the Oneida Indians

were fully integrated into the citizenry of New York

from the signing of the 1788 Treaty of Fort Schuyler.

Boylan, 256 F. at 477-8. They were not uncivilized

Indians living separate and apart from general society

on territorial lands. Sandoval at 39.

Because these 300,000 acres of land have never

been a federal Indian reservation under the federal

public land laws of the United States they have never

been subject to extinguishment, diminishment or

10

disposal by Congress under the Property Clause. Public

land law decisions concerning lands that have been

extinguished or diminished from a federal reservation

may provide an example in this case. For example, the

holding in Cass County v. Leech Lake Band of

Chippewa Indians, 524 U.S. 103 (1998), that lands .

purchased by tribal members within the former

exterior boundaries of the reservation were deemed

taxable unless properly placed into actual trust status

under 25 U.S.C. § 465, should apply with even more

force on the Oneida parcels that cannot have any

"reserved" federal territorial rights. See generally

United States v. Winans, 198 U.S. 371 (1905), Winters v.

United States, 207 U.S. 564 (1908).

The City of Sherrill has been forced to defend its

authority to tax property that has never been federal

land in federal court against modern federal Indian

common law cases. New York is not a public lands state

and obviously has not understood how to address the

very aggressive claims of the Oneida Indians and

United States to reestablish Indian territory ceded to

New York before the adoption of the Constitution. The

federal Indian common law doctrine of "reserved"

federal territorial rights that has plagued the Western

United States has no application to these lands in New

York. Federal public land law decisions asserting

federal territorial rights are not applicable to this case.

The reservation for the Oneida set aside by the State of

New York in 1788 is not a reservation under federal

superintendence and is not and never was Indian

country. ‘

a

11

B. The Oneida Indian Nation's federal Indian

common law rights are based solely on the

Indian Commerce Clause.

This case would not exist but for the previous

ruling in Oneida Indian Nation v. County of Oneida,

414 U.S. 661 (1974)(Oneida I) that reversed the lower

court rulings that the federal courts did not have

subject matter jurisdiction to hear the federal common

law claims presented by the Oneidas. In that case, this

Court concluded that the complaint raised a

controversy arising under the Constitution, laws or

treaties by asserting a current federal common law

right to possession under the Nonintercourse Act of

1790 sufficient to invoke the jurisdiction of the district

courts under 28 U.S.C. § 1331 and § 1362. The Oneida

complaint to remove the state tax enforcement

proceedings to federal court cites the related continuing

action of Oneida Indian Nation v. County of Oneida,

No. 74-CV-187 as the basis in this case "to enjoin illegal

tax foreclosure." Opinion A-25

In Oneida Indian Nation v. County of Oneida,

this Court said "The rudimentary propositions that

Indian title is a matter of federal law and can be

extinguished only with federal consent apply in all of

the States, including the original 13." There is no

citation that follows this sentence. Instead, the Court

continues. "It is true that the United States never held

fee title to the Indian lands in the original States as it

did to almost all the rest of the continental United

States and that fee title to Indian lands in these States,

or the preemptive right to purchase from the Indian

was in the State, Fletcher v. Peck, 10 U.S. (6 Cranch) 87

(1810). Footnote 6. But this reality did not alter the

doctrine that federal law, treaties and _ statutes

12

protected Indian occupancy and that its termination

was exclusively the province of federal law." Oneida I

at 670.

The opinion then goes to the case of Worcester v.

Georgia, 31 U.S. 515 (1832) to make the point under the

Indian Commerce Clause that "the whole power of

regulating the intercourse with them, was vested in the

United States. Jd. at 560." Oneida I at 670-1. It

continues with some history and then reaches its point.

"Enough has been said, we think, to indicate that the

complaint in this case asserts a present right to

possession under federal law." Oneida I at 675. The

Nonintercourse Act, therefore, was interpreted in

Oneida I as prohibiting tribes under the Indian

Commerce Clause to sell or convey its rights to land

without the permission of the United States within the

13 original colonies. The Oneida's right of possession

has never been deemed more than a federal restriction

on alienation of state land under the Indian Commerce

Clause. See F. Cohen, Handbook of Federal Indian law

(1982 ed.) p. 513-5.

According to this analysis, the Oneida Indians

could maintain a suit that Indian occupancy was not

properly terminated with federal permission pursuant

to the Nonintercourse Act. In upholding the

preemptive right of the original 13 colonies over their

state lands in Fletcher v. Peck, this Court established

that the federal courts cannot recharacterize these

state reservation lands as federal territorial lands

subject to the Property Clause. See Fletcher v. Peck, 10

U.S. (6 Cranch) 87, 142-3 (1810). This distinction must

be understood to be applied. The lower federal court

opinions are confused as to the Oneida's federal right of

possession.

13

As the Respondent's Brief in Opposition makes

undeniable clear in their opening statement, the

Oneidas are demanding that the federal courts treat the

reservation of state land set aside by New York the

same as federal territorial public domain lands set aside

and reserved to the Mescalero Apache Tribe of New

Mexico. "Despite the rule forbidding state and local

taxation of Indian reservation land, Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 148 (1973), Sherrill levied

property taxes on the Oneidas." Br. in Opp. 1. Their

whole argument is that the New York reservation was

never diminished or disestablished under federal law.

As stated in the previous section, unless the United

States purchased these lands from the state of New

York as done in United States v. John, the United

States has never had any Property Clause authority

over these lands to disestablish, diminish or to convey

except to remove the restriction on alienation.

The facts of this case plainly show that following

the 1832 decision in Worcester v. Georgia, the United

States agreed to remove all of the New York Indians

from the state of New York as evidenced by the Treaty

of Buffalo Creek. As decided in 1898, in a case requiring

this Court to interpret the 1838 Treaty of Buffalo

Creek, "These proceedings, by which these tribes

divested themselves of their title to lands in New

York, indicate an intention on the part of both of the

government and the Indians that they should take

immediate possession of the tracts set apart for them in

Kansas." New York Indians v. United States, 170 U.S.

1, 21 (1898). (emphasis added). The 1838 Treaty Buffalo

Creek, executed by the Treaty of May 1842, was the

federal permission for the Oneida to convey all of their

lands restricted under the Nonintercourse Act to New

York.

14

As confirmed by the Second Circuit opinion in

United States v. Boylan, in 1842, 1,110 acres remained

in the original reservation set aside by New York in

1788. The Treaty of 1842 which executed the broad

provisions of the Treaty of Buffalo Creek, gave the

permission of the United States required by the

Nonintercourse Act as interpreted in Worcester to

convey all of the Oneida lands. However, 32 acres in

Schedule B, although released from the restriction on

alienation, was continued as a state reservation for

specific families. United States v. Boylan, 265 F. 165,

167-8 (2nd Cir. 1920). Only the 32 acres on Schedule B

was retained in any federal restricted status.

The position of the United States in Boylan was

that the families still living on the 32 acres required

federal protection as wards to prevent New York from

partitioning the remaining reservation land. Boylan 256

F. at 477-8. Even the 32 acres was contested as being

subject to any federal restriction because the Oneida

had ceased to exist as a tribe. See dissent of Circuit

Judge Ward, Boylan 265 F. at 174-6. The United States

never claimed in Boylan that lands ceded by the Oneida

to New York before the Treaty of Buffalo Creek were

not alienated wi-h the permission of the United States

or that conveyances of land made before the Worcester

ruling in 1832 required the permission of the United

States to be legally alienated. As Judge Ray said: "In

the instant case the restriction on alienation by these

Oneida Indians of their lands was not imposed by act of

Congress..." Boylan 256 F. at 482.

Once Indian lands are alienated with the

permission of Congress, even if the Indian tribe

reaquires them, the protections of the Nonintercourse

Act no longer apply. See South Carolina v. Catawba

Indian Tribe, Inc., 476 U.S. 498, 505-06 (1986).

15

Therefore, under the Indian Commerce Clause, the

Oneida Indian Nation, which claims in this case that it

has no relation to the Oneidas still living on the

reserved 32 acres, does not have a federal claim that

these lands in New York are Indian country. Opinion of

A3. See footnote 1.

As this Court has already decided, the federal

rights of the Oneida Indians to lands within the original

reservation set aside by New York are confined solely

to the Indian Commerce Clause. Unlike the situation in

Worcester v. Georgia, the Treaty of Canandaigua does

not have language granting the Oneida any federal

rights beyond mere occupancy of the state reservation.

United States v. Boylan, 265 F . 165, 173 (2nd Cir. 1920).

This Court should reverse the lower federal courts in

this case and hold that there is no federal basis to

remove these tax enforcement proceedings from state

court.

Under the analysis of Oneida I, conveyances of

land from the Oneida Indians to the state of New York

made prior to the Worcester opinion in 1832 were valid.

unless the principle of ex post facto can be suspended or

later decisions of this Court applied retroactively to

somehow remake these privately purchased parcels

into federal territory not subject to state and municipal

taxation. As discussed below, federal common law has a

history of being applied retroactively, which needs to

be reexamined by this Court.

i6

Il. FEDERAL INDIAN COMMON LAW IS NOT IN

THE NATIONAL INTEREST

A. Ashort history of federal Indian common law.

As the Oneida Nonintercourse Act cases and this

ease clearly demonstrate, applying old concepts of

federal common law using post 1934 legal precedents

creates a morass of litigation. In Ware v. Hylton, 3 Dall.

199 (1796), this Court for the first time defined the basic

sovereign relationships of the new Constitution. The

case explains how Indian tribes were treated as semi-

foreign states because during our Revolutionary War

they had been actively encouraged by Great Britain to

wage war against the colonists. According to the Ware

Court, with the adoption of the Constitution, a single

federal Indian policy was developed and applied to all

Indian tribes because as long as they existed as tribes

they were capable of making war. These preliminary

decisions on the balance of the various sovereignties

have not changed. See Sosa v. Alvarez-Machain, 124

S.Ct 2739 (2004) citing Ware v. Hylton.

Prior to 1938, this Court assumed that the

federal courts would "discover" federal common law

that would create a more just governance. See

generally Swift v. Tyson, 16 Pet. 1 (1842). This general

federal common law included such terms as "tribal

sovereignty," “trust,” "reservation," and "Indian

country" that were interpreted broadly by this Court in

the cases regarding statutes and treaties entered by

the political branches. In Worcester v. Georgia, this

Court interpreted an Indian tribe to be a separate

sovereign entitled to be treated as wards of the United

States owed a duty of protection like a "trust" as a

matter of federal common law.

17

The War Powers under the Constitution of the

United States of Solicitor William Whiting, written to

justify the war power policies of the Civil War and

continue them into the future, explains that from the

1830's forward Indians were regarded as _ hostiles

directly under war power authority. See W. Whiting,

War Powers Under the Constitution of the United

States, (War Powers), citing speech of John Quincy

Adams p. 76-78, (43d ed. 1871). As stated by Mr.

Adams: "The war power is limited only by the laws and

usages of nations. This power is tremendous; it is

strictly constitutional, but it breaks down every barrier

so anxiously erected for the protection of liberty, of

property and of life." War Powers at 77. Federal

common law expanded the right to seize and hold

conquered territories placing military government over

ordinary civil administration in public lands decisions in

New Mexico and California. War Powers at 62-63.

During and after the Civil War, the "discovery"

of federal common law was replaced with virtual total

deference to the Executive and Congress. For the first

time, conquered territories became subject to the

absolute discretion of the Executive to permit the

resumption of self-government and be again clothed

with their former political rights. War Powers 309-10.

The footnote to this section cites the Northwest

Ordinance as being the model of our territorial

governments in time of peace. This meant that the

temporary territorial status stated in the Property

Clause and under the Northwest Ordinance discussed

in Johnson v. M'Intosh, 8 Wheat. 543 (1823) could be

made a permanent status under the war powers. Since

the whole conquered South and all federal lands were

already subject to the war powers, Solicitor Whiting

wrote a memorandum explaining how all lands acquired

18

by the United States or subjected to federal rights

could by various means be deemed federal territory.

War Powers at 470-8.

In the case of Holladay v. Kennard, 79 U.S. 390

(1871), an actual Indian skirmish during the Civil War

is described. The Court casually explains that because

there were hostile Indians that were public enemies at

war with the United States, that the stagecoach

company was required to have an agent of greater

faculties than would have been normally required to

avoid negligence liability. This case demonstrates how

completely the war powers had become integrated into

the domestic law. When Congress in the Revised

Statute 2079 of March 3, 1871, completely placed federal

Indian common law into the main body of statutes that

expressly included the war powers from the Civil War,

this Court acquiesced. See United States v. Kagama,

118 U.S. 375 (1886).

The first two cases in which this Court deferred

to the political branches' definitions of Indian law

following the Civil War were Jn Re Kansas Indians, 72

U.S. 737 (1866), and New York Indians v. United

States, 72 U.S. 761 (1866). This Court wrongly

interpreted the 1794 Treaty of Canandaigua as if the

lands owned by the State of New York were federal

territorial lands by applying the decision of the Kansas

Indians directly to the New York situation. Jd. at 769.

This error led to the ruling in New York Indians v.

United States, 170 U.S. 1, 21 (1898) which corrected the

earlier misinterpretation by applying the subsequent

Treaty of Buffalo Creek.

General federal common law made by the federal

courts lay dormant until the 1890's when it resurfaced

in an even stronger form than existed prior to the Civil

War. This period of judicial activism applied the war

19

powers incorporated into federal land law while

expanding the trust relationship between the Indian

tribes and federal government to wholesale challenge

state acquired rights to due process of law and to

private property. Talton v. Mayes, 163 U.S. 376 (1896),

United States v. Winans, 198 U.S. 371 (1905), Winters v.

United States, 207 U.S. 564 (1908). Congress responded

with the Naturalization Act of 1924 conferring

citizenship on all Native Americans. Thus continuing its

legislative policy to assimilate the Indian tribes.

With the adoption of the Indian Reorganization

Act of 1934, Congress decided the reservations could be

deemed permanent. Federal Indian policy had to be

publicly perceived as being in the interests of the

Indian tribes. For it to be for the benefit of the Indian

tribes, the whole history of federal Indian policy was

rewritten, camouflaging the war powers and expanding

the trust relationship. Solicitor Felix S. Cohen was

assigned the task of writing the new Handbook of

Federal Indian Law. The Federal Indian Law

handbook produced and published by the government is

disturbingly similar to the War Powers book produced

by Solicitor William Whiting to justify and argue for

the continued use of the War Powers during and after

the Civil War. Just like the War Powers book, it has

gone through many revisions and reprintings. Both

books were written by federal solicitors and published

originally by the federal government.

Various editions do not necessarily agree with

each other. For example, Footnote 5 of Oneida I cites

not only cases but the U.S. Dept. of Interior, Federal

Indian Law handbook of 1958 as setting "out some of

the fundamentals of the law dealing with Indian

possessory rights to real property stemming from

aboriginal title, treaty and statute." Oneida I at 669-70.

20

The 1982 edition of the Handbook of Federal Indian

Law says: "The 1958 edition did not reflect Felix

Cohen's work....Cohen's balanced synthesis of complex

issues evolved into a volume with a constant theme: the

federal government's power over Indian affairs is

limitless." F. Cohen, Handbook of Federal Indian Law,

Preface p. ix (1982 ed.).

B. The Federal Indian Common Law Rulings in

this case are based on War Powers.

The Oneidas assert on page 16 of their Brief in

Opposition that their federal possessory right created

by the 1794 Treaty of Canandaigua has always been

protected from alienation by the Nonintercourse Act of

1790, 25 U.S.C. § 177. "Thus, in 1795, Secretary of War

Timothy Pickering sent to the New York Governor the

opinion of Attorney General William Bradford stating

that lands held by the Oneidas after the 1788 state

treaty were restricted by federal law and that New

York could not cause their alienation except ‘by a

treaty holden under the authority of the United States,

and in the same manner prescribed by the laws of

Congress."" Br. in Opp. at 16-7.

Nonintercourse acts are war powers acts.

According to William Whiting, the Solicitor of the War

Department during and after the Civil War, Congress

acknowledged the existence of civil war when it passed

the Nonintercourse Act of July 13, 1861 against the

seceded Southern States. War Powers at 237-8. He

asserts that under the case of the Hiawatha the

Supreme Court found it was bound to take judicial

cognizance of the congressional declaration of war. See

Prize Cases, 67 U.S. 459 (1863). In Hiawatha, Solicitor

Whiting asserts that this Court also determined "since

21

that time the United States have full belligerent rights

against all persons residing in the districts declared by

the President's Proclamation to be in rebellion." War

Powers at 238-9. Full belligerent rights in the United

States means that all constitutional rights are

nonexistent because a state of war exists. Against the

war powers there are no private property rights, civii

rights or due process rights under state law. War

Powers at 238-40.

It is no accident that when the federal courts

assume subject matter jurisdiction to hear a federal

Indian common law claim as done in these Oneida cases

based on the Nonintercourse Act that all civil rights

and state due process is completely subjugated to the

federal common law right. No matter how politically

incorrect it is to say so, there is an inherent conflict

between constitutional civil rights and liberties and

reasserting tribal sovereignty claims under federal

common law that are federal domestic war powers.”

Instead of admitting that the war powers

discriminate against Indians, the legal fiction has been

perpetuated that the United States was and is

protecting Indians as a "trust." This Court has

continued to allow Congress to treat Indian tribes as

separate from the citizens of the states completely

depriving Indian people of any and all constitutional

rights. Santa Clara Pueblo v. Martinez, 436 U.S. 49

* Organizations and individuals who promote "the equal protection

of the law" including federal and state constitutional rights for all

citizens, like CERA and CERF, often endure attacks and negative

labeling such as “anti-Indian," "racist," "hate group" and "KKK"

precisely because of their advocacy for equal protection. A recent

example is a June 22, 2004 article in Indian Country Today entitled

"CERA-- The Ku Klux Klan of Indian country" by Dave Lundgren.

22

(1978). In United States v. Lara, 124 S.Ct. 1628 (2004),

Congress' authority under the Indian Commerce Clause

to treat Indian people as separate from all other

citizens was deferred to again allowing an Indian man

to be convicted in a foreign tribal court and federal

court for the same offense.

But as acknowledged in Lara, federal Indian

policy has encompassed an aspect of military and

foreign policy from our first century. The pages cited to

in Lara of the decision in United States v. Curtiss-

Wright Export Co., 299 U.S. 304, 315-322 (1936) are the

rationale that stopped the Executive Branch from using

domestic war powers within the United States. Lara at

1634. The Lara opinion continues by applying this fact

to the "plenary" powers assumed to reside in Congress

to legislate tribal sovereign authority and federal

Indian policy to change "judicially made" federal Indian

law. Id. at 1637. The Lara opinion implies that no

previous federal common law _ decisions are

constitutional decisions of this Court protected by Art.

III separation of power concerns. Since there is no way

to remove the war powers from federal Indian common

law, it is no longer in the national interest for this Court

to promote federal Indian common law.

Ill. THE ONEIDA INDIAN NATION AND THE

INDIAN INDIVIDUALS DO NOT HAVE

STANDING IN THE FEDERAL COURTS TO

CHALLENGE STATE PROPERTY TAXES

A. The Erie Doctrine should be applied to end

federal Indian common law.

In the beginning, if Indian persons ended their

tribal affiliations they were treated as all other persons.

23

Indian tribes that still acted as separate tribes and

could wage war were treated as potential enemies

subject to exclusive federal control under the Indian

Commerce Clause. This simple but realistic approach

balanced state and federal interests on lands that had

never been federal territory. See Fletcher v. Peck, 10

U.S.(6 Cranch) 87 (1810).

According to the United States, the Oneida

Indians of the State of New York, who never waged

war on the United States, are still separate and apart

from the general citizenry of New York requiring this

Court to defer to the special trust relationship and

enforce their federal common law rights against the

people and state of New York. U S. Amicus at 16-17.

Their separate status is based on the Executive

Branch's exclusive authority to recognize their separate

status as an Indian tribe under its war power authority

as explained in the prior section of this brief.

This is exactly the kind of discrimination cited in

Erie Railroad Co. v. Tompkins, 304 U.S. 817 (1938) that

required reversal of the general federal common law

doctrine of Swift v. Tyson. As this Court said:

"Diversity of citizenship jurisdiction was conferred to

prevent apprehended discrimination in state courts

against those not citizens of the state. Swift v. Tyson

introduced grave discrimination by noncitizens against

citizens... Thus, the doctrine rendered impossible equal

protection of the law." Erie at 820-1.

The Oneida tribe in their Complaint in this case

claim to invoke federal question jurisdiction under 28

U.S.C. § 1331 and the direct statute for Indian diversity

jurisdiction, 28 U.S.C. § 1362, as was done in the

Nonintercourse case as a matter of federal Indian

common law. The Erie Doctrine should apply to Indian

diversity jurisdiction under 28 U.S.C. § 1362 just as it

24

does to 28 U.S.C. § 1332 jurisdiction to stop the

application of federal Indian common law by the federal

courts. The discriminatory effect of applying Indian

diversity jurisdiction with the United States siding

with the Oneidas to attack state sovereignty far

exceeds the discriminatory effect of a private party

asserting federal common law. There are no private

property rights, civil rights or state due process rights

against these assertions of federal Indian common law.

The Erie Doctrine also applies to federal

question jurisdiction under 28 U.S.C. § 1331. The

federal common law right of being restored to

possession and to territorial sovereignty: is the asserted

federal question in the Nonintercourse Act cases. In

this case this right to possession under federal common

law is the basis that the lands can also be made Indian

country not subject to municipal property taxes

assessed by the City of Sherrill. Under this federal

common law analysis, all private property rights can be

cancelled and the parcels at issue be deemed federal

territory for as long as the Executive Branch

designates as explained by Solicitor Whiting. War

Powers at 470-8.

There is no limit to this asserted Executive war

power as long as the federal courts have federal Indian

common law. Congress has never possessed any

constitutional authority to change the status of these -

lands owned by the State of New York except to

extinguish any claim that the lands were restricted

from alienation. As said in Erie Railroad Co. v.

Tompkins, "The federal courts assumed, in the broad

field of ‘general law,’ the power to declare rules of

decision which Congress was confessedly without

power to enact as statutes." Erie Railroad Co. v.

Tompkins, 304 U.S. 817, 819 (1938).

25

The decision in the Village of Venetie was an

attempt to rebalance state and federal interests by

confining the federal common law definition of Indian

country to the statutory definition of Indian country.

The lower federal courts utterly disregarded the

decision as discussed in the first section of this brief in

favor of a broad federal common law definition of their

own fashioning. If the federal courts can hear these

federal Indian common law claims there will always be

the potential for a federal judge to apply the war

powers to completely destroy state jurisdiction even

over land that was never federal territory. Such a

power could destroy the tax base not only of the City of

Sherrill but also of the State of New York and other

states.

The only solution to end the use of federal war

powers in federal Indian common law is to apply the

Erie Doctrine that "There is no federal general common

law." Erie at 822. Such a declaration would not

terminate all Indian tribal rights. The Indian tribes that

reside on historic Indian reservations of federal public

domain land will still retain most of the statutory rights

they presently enjoy. What is terminated is the ability

of the federal courts to restore or place additional lands

under federal territorial status subject to the war

powers. This does mean that the Indian Commerce

Clause, Treaty Clause and Property Clause must be

reinterpreted to remove federal Indian common law on

a case by case basis. *

The 32 acres of land still reserved by the State of

New York for tribal use will remain untaxed. Lands

° bene ey te are would apply against placing lands into "trust

status" a fede ndian common law term incorporated i

U.S.C. § 465. 7, —

26

purchased by the Oneida Indians within the original set

aside by the State of New York would no longer be

capable of being deemed Indian country by a federal

court as a matter of federal Indian common law to

evade municipal taxation.

B. The Fourteenth Amendment cannot be

applied in Indian claims to remove lands from

state taxation.

The Complaint in this case also cites 42 U.S.C. §

1983 as a basis for asserting the subject matter

jurisdiction of the federal courts to remove these

parcels of property from the jurisdiction of the City of

Sherrill. Under Inyo County v. Paiute-Shoshone

Indians of the Bishop Community, 538 U.S. 701 (2003)

the Oneida Indian Tribe is not a "person" entitled to

bring suit against the City of Sherrill. Inyo County at

704, 708-12. The Complaint was also filed by individual

tribal members against the City of Sherrill. Whether

individual tribal members can assert federal Indian

common law claims based on the Nonintercourse Act,

28 U.S.C. § 177, as a civil rights action has not been

answered by this Court. —_

Obviously, 42 U.S.C. § 1983 is a civil rights

statute. The Oneida individuals are asserting that the

City of Sherrill violates their civil rights by taxing

these parcels of land, which they claim were not

federally permitted to be conveyed to New York under

the federal Nonintercourse Act. The individuals

asserting the civil rights claim are citizens of the State

of New York. These individuals are arguing that it

violates their civil rights to treat the disputed parcels

as being under state municipal jurisdiction because of

federal Indian common law.

27

The civil rights statute, 42 U.S.C. § 1983, is

based on the Fourteenth Amendment to the United

States Constitution. Indians not taxed are not

“persons” entitled to raise a civil rights claim. The

Fourteenth Amendment in Section 2 excludes Indians

not taxed. Therefore, the only way these individual

Indians can assert a claim as persons is if the land they

reside on is taxable. These individual Indians have no

standing under 42 U.S.C. § 1983 to assert that any

federal court has authority to declare that these parcels

of land are not subject to taxation by the City of

Sherrill. Only under federal Indian common law do

these members of the Oneida Indian Nation have

standing to bring this suit against the City of Sherrill

that their right of self-government is harmed by the

land being taxed.

As stated in Erie Railroad Co. v. Tompkins, it is

a violation of the equal protection of the law, the main

provision of the Fourteenth Amendment, to allow

federal common law to cause discrimination. This Court

has recently upheld the application of Erie Railroad

Co. v. Tompkins, in Sosa v. Alvarez-Machain, 124 S.Ct.

2739 (2004) to limit the discretion of the federal courts

to create or formulate new federal common law

principles to 18th Century statutes like the Alien Tort

Statute of the Judiciary Act of 1789. This Court

specifically held that "These reasons argue for great

caution in adapting the law of nations to private rights."

This reasoning should apply equally to the

Nonintercourse Act of 1790. In 1790, the Indian tribes

were treated as foreign states only obligated by treaty

and the law of nations. See Ware v. Hylton, 3 Dall. 199

(1796). The lower federal courts in this case wrongly

expanded the federal Indian common law term of

Indian country by applying modern federal Indian

28

common law precedents to alter the historical meaning

of the Nonintercourse Act of 1790 under Sosa v.

Alvarez-Machain. These parcels of land which were

within the state lands reserved tor the Oneida Indians

in 1788 are not and never have been Indian country.

CONCLUSION

The lower federal court rulings should be

reversed and this case dismissed.

Respectfully submitted,

Woodruff Lee Carroll

Counsel of Record

The Galleries

441 South Salina St

Syracuse, CA 13202

(315) 474-5356